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Here’s why this lawyer defends scientists accused of misconduct

Paul S. Thaler

More scientists are trying to settle accusations of misconduct in court, a trend very familiar to Washington, DC-based lawyer Paul Thaler. Regular readers may recall the name of one of Thaler’s clients — Rakesh Kumar, a scientist at George Washington University who filed an $8 million lawsuit for how the school handled an investigation into his work. He’s also representing Bharat Aggarwal, the subject of an investigation at MD Anderson who has threatened to sue us (and logged his ninth retraction this week). For 25 years, Thaler has been representing scientists embroiled in misconduct proceedings. He spoke to us about his family’s highly pedigreed background in science, and why everyone deserves an advocate.

Some of your clients have committed misconduct, but you still work to protect their reputations and even help them continue to do research. Why?

My clients hire me to protect their interests. Typically, if a scientist hires me to help him in a misconduct proceeding, his interests include protecting his reputation and career. It is not my position to judge a client or potential client. And even as to those who arguably have done something wrong, there are different degrees of misconduct. There is misconduct that falls within the federal definition. A negative finding there would result in a public announcement in the Federal Register and placement on the system notifying others of the misconduct. Obviously, this is very impactful on a scientist’s career, perhaps fatally so. But the federal regulations require certain findings and not all allegations meet the federal definition of scientific misconduct. There is also the possibility the institution in charge of investigating the allegations has its own set of policies that have a different standard of what constitutes research misconduct. Ultimately, the goal of all of the proceedings is to protect the integrity of science. Just as all those who are accused of crime are not bad people and can very well be productive members of society after they pay their penalty, so too does science not necessarily want to rid itself of all scientists accused of misconduct. And don’t forget – many scientists accused of misconduct are exonerated.

Obviously, in highly sensitive cases such as misconduct investigations, the institution and the accused often like to keep many aspects confidential, and adopt an “innocent until proven guilty” approach. On the other hand, you’ve got some people (including Retraction Watch) pushing for more transparency in science, so people can learn from others’ mistakes and funders can know the history of whomever they spend their limited funding on. Which side of the argument do you fall on?

The first thing to remember is that the federal regulations, as well as the internal policies of most institutions, protect the confidentiality of respondents in research misconduct matters. Thus, as a matter of federal law, institutions are prohibited from disclosing the identity of an accused scientist, except on a “need to know” basis, for example, to a member of the investigation committee, unless and until a finding of research misconduct is made. These proceedings are not public as court is in criminal and civil disputes. It is more comparable to proceedings against other professionals, such as lawyers, who are governed by their licensing organization. Privacy in these matters is critically important as there is no public need to, or right to know, about professionals simply accused of wrongdoing. What the public has a right to know about is a professional who has been found responsible for wrongdoing. At that point, the public is alerted. But because a professional’s reputation is so important to his or her career, the specter of an accusation can permanently stain that reputation and frequently the accusation is not well founded. So the confidentiality of the process allows a full examination before the public is made aware. We certainly do want to know about those scientists who have actually done something wrong that impacts science, but we do not, and should not, be concerned with those who are good scientists but caught up in a sometimes very political, internal dispute.

How are cases of scientific misconduct different from your other cases? Does taking them on require any special knowledge or skills?

Scientific misconduct matters are fairly different from other types of cases we handle. I have been a civil litigator for nearly 30 years. I have handled scientific misconduct matters for about 25 of those years. Misconduct matters are not handled in the aggressive, argumentative, sometimes confrontational manner litigation cases are. We are reminded that the “other side” in a misconduct matter in which we represent the scientist, is also the judge and jury. If we are representing the scientist, we are providing the inquiry or investigation committee with information, frequently in the form of a written submission. We do not use the same kind of advocacy that we would in a motion to the court. We view our role more as an educator to the committee to explain the regulations as they are applied to the facts of the case. This is very different from a submission to court in which we make our strongest arguments, sometimes while aggressively challenging the other side’s submission to court.

Misconduct cases often feature complex science. How do you get up to speed on the subject matter that you’re dealing with?

We rely very heavily on our client – whether it is the institution or the scientist. Clearly, while we have experience in well over a hundred misconduct matters, we cannot have the same level of knowledge and expertise in all the various fields of science. So we look to our clients to assist us in understanding and then explaining to others the issues in the particular matter.

Occasionally, we are required to look outside of the process to enlist an expert.

How did you start representing scientists?

I began by getting referrals from my mother, Barbara Mishkin, who was very involved in helping to write regulations in the early years of [the Office of Research Integrity (ORI)] and assisting universities and hospitals with their misconduct proceedings. She was an attorney at Hogan & Hartson (now, Hogan Lovells) in Washington, D.C. and would be conflicted out of representing a potential client from time to time. As a then-young lawyer it was a great help that she included me on her referral list and I began developing my own practice in the field. So I guess that makes me a second-generation scientific misconduct lawyer.

In a Nature article on a Danish court case, Daniele Fanelli, a research-misconduct expert at Stanford University, notes that prosecutions of scientists are on the rise. “I think we should expect that some of these individuals accused of scientific misconduct will fight back,” he tells Nature. Is this a trend that you see happening? How has your caseload changed over the past decade?

Yes, I would agree. I have seen a fairly dramatic uptick in the number of proceedings in recent years. I know that ORI has a heavy caseload. I think with the increased public awareness as well as the competition in science for discovery and requests for federal funding, this trend will continue for the foreseeable future.

We’ve often lamented when journals publish opaque retraction notices, which give little clarity to what’s gone wrong with a paper. Recently, Nature blamed lawyers for this practice, noting that “those under investigation increasingly turn to lawyers to defend themselves and their reputations, and their employers and journals are more frequently having to respond accordingly.” Are you concerned that the increasing role of lawyers in misconduct investigations will impede journals’ ability to correct the literature in a transparent way?

While we do live in an increasingly litigious society, people and entities have a long history of turning to lawyers to help protect their rights. The tug of war between research institutions, scientists and journals concerning retractions is inevitable given the interests involved. For the scientist who prepared a paper relying on data from his or her research, the threat of retraction or revision is a threat to their reputation and career. When any one of us is under such pressures, there is a strong desire to protect that which we have cultivated and which provides us with our standard of living. For the universities supporting the scientist, there is an interest in striving to maintain as pristine a scientific research environment as possible. Bad scientists, or perceived bad scientists, in the eyes of such entities, should be sanctioned in some way when it becomes evident that, in their opinion, the research is tarnished and science itself should be protected. Of course, the severity of the errors or omissions is viewed, frequently, differently by the scientist and the university. Thus, when the university, for example, reaches out to a journal to notify it of misconduct uncovered by the university, the scientist might believe the report to be misleading or itself in error. Lawyers get involved to assert and defend those interests on either side, and indeed sometimes on behalf of the journal itself when threats of litigation result. Ultimately, it is for the journals to decide how to handle the request or suggestion of retraction. There does not seem to be a decrease in the number of retractions or allegations suggesting retractions. And remember, as each stakeholder involved strives to protect its interest as best as it can, you should remember you have asked a lawyer whether lawyers are getting in the way!

Your grandfather was an inventor, and several members of your family are scientists, correct? How do these personal connections influence how you see your clients, and your role in science?

I am a proud member of a family filled with scientists. You are correct, my great-great grandfather was an inventor of note, Emile Berliner. He invented the gramophone (the use of a flat disc record as opposed to Edison’s cylinder), as well as the first helicopter to have sustained flight, the microphone which Alexander Graham Bell included in the telephone and improvements in acoustics, among other things. My own immediate family includes my mother’s husband, Dr. Mortimer Mishkin, a neuropsychologist at [the National Institute of Mental Health] for 60 years and winner of the National Medal of Science from President Obama in 2009 and this year’s Neuroscience Award winner from the National Academy of Science. My brother, Dr. David E. Thaler is Chairman of the Department of Neurology at Tufts Medical Center in Boston. And our grandparents, Dr. Maurice Friedman and Gertrude Friedman, as research scientists at the University of Chicago actually developed the pregnancy test commonly referred to as the “Rabbit test.” Science has always been a part of my life and I am honored to assist institutions and scientists in improving and protecting the field of science in my own way.

“frequently the accusation is not well founded. ” Could we have some references on that, please, Mr. Thaler, or is this just heresay?

I don’t think that lawyers have a place in scientific discussions. And an accusation of scientific misconduct is exactly that. We discuss it, and then we decide the consequences: correct or retract the papers, inform the institution, and most certainly thoroughly inform the general public. We do the same if we decide that it is not misconduct, or if we are divided on the evidence. We base so many decisions on scientific results, we must be absolutely certain that they are true. Dragging secrecy and legal proceedings into the discussion is not, in my opinion, helpful.

I agree that lawyers should not get involved in scientific discussions.

However, often lawyers are necassary to protect and defend the rights of the individuals involved. Even the biggest fraudster should have a fair hearing.

In particular, I think young and less experienced scientists benefits from legal aid. I.e. in cases of plagiarism from experienced, well-known professors, where blowing the whistle on a case on behalf of oneself or a coworker could lead to the case getting buried by the professor and/or the institution, with (possible) harsh repercussions for the young scientist. A lawyer could here unbury the case, and help place the blame where blame is due.

I agree that dragging lawyers into a scientific debate does not constitute science.

One of the positive sides of this “lawyering up” is that details that would otherwise be denied to us by university officials often end up in court transcripts that can be obtained through freedom of information requests. This is the bit I look forward to when some of these shameless individuals lawyer up to fight obvious problems.

Thanks, Morgan. This is, if I am counting correctly, one case, known under two names. The unreferenced assertion is “frequently the accusation is not well founded.” I am genuinely interested in any investigations into the numbers on this. I would assume that he has personal experience of those seeking help who have been wrongly accused, but where are the numbers on how many such cases are handled at a particular institution or state or national level and how many were not well founded? I am not aware of any, but would love to know what Mr. Thaler bases his assertion on.

The Office of Research Integrity (ORI) had for many years (but not recently) published statistics on ORI findings of cases research misconduct as a percentage of all cases involving inquires or investigations of research misconduct involving National Institutes of Heath (NIH) and other Department of Health and Human Services (HHS). They appeared in the ORI Annual Reports, available online at https://ori.hhs.gov/annual_reports [but the website today contains an “under construction 7/2016” label]. From my previously downloaded copies of the ORI Annual Reports, these were the frequencies of misconduct findings by calendar year:

I am so pleased to see this interview of one of the, if not the, most respected counsels who handle legal issues of cases of research misconduct, Paul Thaler, son of the distinguished counsel Barbara Mishkin, who was the pioneer in handling legal issues in scientific misconduct cases. She was often challenging us in OSI and ORI in the 1990’s, before retiring and passing the torch to Paul: while we sometimes disagreed with her views, we always respected them and her.

The same is true for me with Paul Thaler, in defending clients who were wrongly accused or overcharged, facing public scrutiny and unfair attacks, from angry complainants or jealous competitors, and dealing with unfair institutional committees or research integrity officers (RIOs) or officials. Those honest scientists needed legal and expert assistance in understanding the processes, getting their rights acklowlefged and respected. Too often these respondents to weak or unfounded allegations had been trampled by those in the system, who failed to know or follow the Federal Regulations and their own instutution’s policies and procedures.

Fine, ethical, science-understanding counsels like Paul Thaler, who is often called on to speak at ORI conferences or training sessions, do have an important and much-needed role to play in maintaining the integrity – with ORI and the many fine RIOs – in the United States research misconduct arena.

“Just as all those who are accused of crime…can…be productive members of society after they pay their penalty, so too does science not necessarily want to rid itself of all scientists accused of misconduct.”

If they’re paying a penalty (in the sense that I think is meant), that means they’ve been convicted of misconduct, not merely accused of it. It seems like common sense to keep a convict away from the illegal thing they were convicted of doing. For example, it seems reasonable that a convicted bank robber be banned from ever working in a bank (granted, they probably couldn’t get a job there in the first place). And it’s probably not a good idea to let a drug addict work in a pharmacy.

Similarly, it seems reasonable that convicted science fraudsters should be, at the very least, banned from publishing forever. Otherwise, isn’t it like putting a fox that you know will eat your hens back in charge of your henhouse? I’m all for second chances, but after they’ve paid a penalty, they can be productive members of society in some other way.

“family’s highly pedigreed background in science”. What has that got to do with the lawyer’s understanding of science? He himself said “We rely very heavily on our client – whether it is the institution or the scientist.”

Surely, there are situations in which those accused of misconduct deserve proper legal representation. My problem, however, is that the involvement of lawyers can sometimes devolve into a sort of ‘war of attrition’: The party with the better financial resources (e.g., a well-established PI vs. a post-doc) will have the greatest chance at ‘winning’. Such scenarios are neither fair nor necessarily protect the integrity of science.

Thanks for a good interview. Let me focus on one statement early in the article: “There is misconduct that falls within the federal definition. A negative finding there would result in a public announcement in the Federal Register and placement on the system notifying others of the misconduct.” ORI handles its findings of research misconduct often in the form of a voluntary exclusion agreement. This agreement generates an entry in the Federal Register. But there is no Federal-wide system of notifications of misconduct. Other Federal agencies, with NSF as an example, do not use the Federal Register when an agreement is reached, or when a finding of misconduct are made, but rather follow their own system of notifications and records. Debarments as a result of research misconduct, along with debarments for multiple other reasons, appear in a system that is public, and this may have been the system to which Mr. Thaler referred. And of course, as the interview and the comments point out, grantee universities and institutions follow their own procedures that are sometimes at variance from the Federal practices.

Absent a federal investigation, universities do not necessarily make public the results of internal misconduct investigations. There are cases of repeat offenders, who have been investigated and found guilty by more than one university. To protect their reputation, University A covers up the conclusion, University B hires the person only to repeat the process, and University C does the same thing once more.

I fail to understand why outing a fraudster reflects poorly on an institution. That needs to change. There is too much incentive to allow bad behavior to continue. When we figure out how to reward places for doing the right thing rather than the wrong thing, we will have fewer cover-ups of academic misconduct.